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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHERYL L. BITNER, :
:
Appellant : No. 205 WDA 2015
Appeal from the Judgment of Sentence Entered September 2, 2014,
in the Court of Common Pleas of Westmoreland County,
Criminal Division, at No.: CP-65-CR-0003169-2013
BEFORE: PANELLA, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 21, 2015
Cheryl L. Bitner (Appellant) appeals from the judgment of sentence
entered on September 2, 2014, following her conviction for theft of property
lost, mislaid, or delivered by mistake.1 In addition, Appellant’s counsel
seeks to withdraw from representation pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Upon review, we affirm the judgment of sentence and grant
counsel’s petition to withdraw.
On September 2, 2014, following a non-jury trial, Appellant was found
guilty of the aforementioned crime as a result of an incident in which
Appellant took a purse that had been mislaid in a McDonald’s restaurant
located in New Stanton, Pennsylvania. The matter immediately proceeded
1
18 Pa.C.S. § 3924.
*Retired Senior Judge assigned to the Superior Court.
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to sentencing, at which time the court sentenced Appellant to one year of
probation and ordered Appellant to pay $165.24 in restitution plus costs.
Appellant filed post-sentence motions on November 14, 2014, after the trial
court granted Appellant’s request for leave to do so nunc pro tunc. On
January 6, 2015, the court issued an order denying Appellant’s
post-sentence motions and an accompanying opinion. Appellant timely filed
a notice of appeal.2 Counsel has filed with this Court a petition to withdraw
and an Anders brief.
Before we consider the substance of this appeal, we must address
counsel’s compliance with Anders:
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof.…
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
2
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and none was filed.
On February 10, 2015, the court issued a decree stating that the reasons for
its rulings could be found in its January 6, 2015 opinion and order as well as
in the transcripts of the September 2, 2014 proceedings.
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advocate’s brief on Appellant's behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are
non-frivolous issues, we will deny the petition and remand for
the filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has expounded further upon the
requirements of Anders:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel’s conclusion that the
appeal is frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is
frivolous.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
above requirements.3 Once “counsel has met these obligations, ‘it then
becomes the responsibility of the reviewing court to make a full examination
of the proceedings and make an independent judgment to decide whether
the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113
3
Appellant has not responded to counsel’s petition to withdraw.
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A.3d 1246, 1248 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354
n.5).
In his brief, Appellant’s counsel states two issues that might arguably
support an appeal: (1) “Did the trial court err in its determination that the
verdict below was supported by sufficient evidence?,” and (2) “Did the trial
court err in its determination that the verdict below was not against the
weight of the evidence?” Anders Brief at 4.
We begin with Appellant’s sufficiency challenge, mindful of our
standard of review.
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying [the above]
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility
of innocence. Any doubts regarding a defendant’s
guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn
from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
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Further, in viewing the evidence in the light most favorable to
the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation
omitted) (alterations in original).
The offense of theft of property lost, mislaid, or delivered by mistake is
defined as follows:
A person who comes into control of property of another that he
knows to have been lost, mislaid, or delivered under a mistake
as to the nature or amount of the property or the identity of the
recipient is guilty of theft if, with intent to deprive the owner
thereof, he fails to take reasonable measures to restore the
property to a person entitled to have it.
18 Pa.C.S. § 3924.
At the nonjury trial, the Commonwealth presented the testimony of
Diane Kunkle and State Police Trooper Albert Miles. Ms. Kunkle testified that
on May 10, 2013, she went to a McDonald’s restaurant in New Stanton with
her grandson. N.T., 9/2/2014, at 4-5. Ms. Kunkle explained that they
ordered their food and a toy for her grandson. Id. at 5. Ms. Kunkle
explained that she paid for the food and, because her grandson wanted the
toy’s packaging removed, she sat her black and brown leather pocketbook4
4
Ms. Kunkle stated that her pocketbook contained approximately $229 in
currency, gift cards, stamps, a debit card, and her driver’s license. N.T.,
9/2/2014, at 7-8, 11.
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down to open the toy. Id. Then, she got the food and they sat down at a
booth, leaving her pocketbook on the counter. Id. at 5-6. Ms. Kunkle
realized that her pocketbook was missing approximately fifteen to twenty
minutes later, when someone asked if she had gas money to spare while she
was putting her grandson into the car seat to leave. Id. at 6.
Ms. Kunkle returned to the McDonald’s and, after she and others
searched the area without success, Ms. Kunkle asked the shift manager if
she had “cameras that work.” Id. at 6, 13. The shift manager responded
affirmatively5 and said that the pocketbook was removed from the counter.
Id. at 6-7. At that point, Ms. Kunkle called the State Police, and a trooper
was sent to the scene. Id. at 7-8. Ms. Kunkle explained that Trooper Miles
returned the pocketbook to her later that evening, at which time she
discovered that approximately $170.00 was missing. Id. at 8-9.
Trooper Miles testified that he was on duty on May 10, 2013, and he
responded to the McDonald’s at 5:25 p.m. for a dispatch in the nature of a
stolen purse. Id. at 14-15. Trooper Miles met Ms. Kunkle at the scene and
spoke to her about the incident. Id. at 15. Trooper Miles explained that the
McDonald’s employees told him that they knew the person who took the
purse off of the counter because she worked at the motel across the street
5
The video surveillance from the McDonald’s was admitted into evidence
without objection as Commonwealth Exhibit 1, and it was played at trial.
N.T., 9/2/2014, at 16-17.
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and came to the McDonald’s often. Id. at 15-16. Trooper Miles then went
to the motel and obtained Appellant’s name from the employees there. Id.
at 15-17. Trooper Miles ran a PennDOT record check and police check and
was able to view Appellant’s license picture. Id. at 17. Trooper Miles stated
that the picture on the license appeared to be the same person that took the
pocketbook from the McDonald’s countertop. Id. Trooper Miles eventually
contacted Appellant via phone and they arranged for her to meet him at the
police barracks in Greensburg.6 Id. at 18.
Trooper Miles testified that Appellant arrived at the police barracks and
had the brown and black pocketbook with her. Id. at 19. Additionally, she
was wearing the same attire that was depicted in the video. Id. at 26.
Upon examination, the trooper identified the pocketbook as Ms. Kunkle’s, as
it contained her license. Id. at 19. According to Trooper Miles, Appellant
stated that she did take possession of the pocketbook at McDonald’s, but
that she was going to return it. Id. at 20. Appellant then stated that after
she took the pocketbook, she went to her boyfriend’s house, ate McDonald’s,
went to pay bills, went to the bank, and was going to go to her daughter’s
house. Id. at 20-21. When asked why she did not give the pocketbook to
6
When arranging the meeting, Trooper Miles told Appellant to bring the
purse, but Appellant responded by asking “what purse” and further stating
that she did not know what he was talking about. N.T., 9/2/2014, at 18.
When he repeated the request, she responded that she would see him at the
station. Id.
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an employee at McDonald’s or call the police when she found the
pocketbook, Appellant responded that she “made a bad decision.” Id. at 20-
21. Trooper Miles stated that he returned the pocketbook to Ms. Kunkle.
Id. at 21.
Appellant also testified at the nonjury trial. Appellant confirmed that
she worked at the motel across the street from the McDonald’s, that she
went “there for lunch every day,” and that the employees know her by
name. Id. at 32. Appellant testified that she did go to the McDonald’s on
the day in question and saw a wallet on the counter. Id. at 27-28.
Appellant stated that the wallet remained there for a long time and, because
she did not think the “young kids behind the counter … would do the right
thing,” she got the wallet to return it to the Greensburg police station, as
she saw upon opening it that it belonged to a resident of Greensburg. Id. at
28-29, 31. Appellant testified that she was going to take the wallet to the
police station while running other errands. Id. at 29, 31. Appellant
explained that she received a call from Trooper Miles while she was out and
then drove immediately to the police barracks. Id. at 30.7 Appellant
estimated that about an hour-and-a-half had elapsed from the time she left
McDonald’s to the time Trooper Miles called her. Id. at 31. Appellant
7
Appellant testified that when Trooper Miles inquired about a purse, she
denied finding a purse and stated “what purse” because she found a wallet,
not a purse. Id. at 29-30.
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denied taking anything from the wallet prior to going to the police station.
Id. at 30.
Viewing the evidence in the light most favorable to the
Commonwealth, we conclude that the evidence presented was sufficient to
support Appellant’s conviction. In so doing, we agree with the trial court’s
analysis of Appellant’s claim:
Facts proven at trial were clearly sufficient to establish
[Appellant’s] guilt. A video camera at McDonald[’]s taped
[Appellant] taking possession of the purse lying on the counter.
She did not notify any personnel employed at McDonald[’]s of
the purse but instead took it to her home. Despite the presence
of Ms. Kunkle’s identification, she made no effort to contact her
nor did she notify police that she found the purse. When
contacted by the police she initially denied having it and when
she ultimately returned it, money in the amount of
[approximately] $170.00 was missing. Given these facts, the
evidence was sufficient to establish a violation of [s]ection 3924.
Trial Court Opinion, 1/6/2015, at 3-4. Thus, Appellant’s sufficiency
challenge fails.
We now turn to Appellant’s challenge to the weight of the evidence,
which we review according to the following standard.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court’s discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the [fact-finder] is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses, and a
new trial based on a weight of the evidence claim is only
warranted where the [factfinder’s] verdict is so contrary to the
evidence that it shocks one’s sense of justice. In determining
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whether this standard has been met, appellate review is limited
to whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and inferences of
record disclose a palpable abuse of discretion.
Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (quoting
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011))
(alterations in original).
In rejecting Appellant’s weight claim, the trial court explained that the
verdict “was not based on conjecture or contradictory facts, nor was there a
serious miscarriage of justice. Rather, the evidence clearly established that
[Appellant], knowing the purse belonged to another, confiscated it for her
own use and failed [either to] turn it in or notify appropriate persons.” Trial
Court Opinion, 1/6/2015, at 4. Upon review, we discern no abuse of
discretion in the trial court’s determination. Thus, Appellant is not entitled
to relief.
Based on the foregoing, we conclude that Appellant’s issues
challenging the sufficiency and weight of the evidence are frivolous.
Moreover, we have conducted “a full examination of the proceedings” and
conclude that “the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at
1248. Thus, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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